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Kirby v. Scotton

Court of Appeals of Idaho

March 9, 2018

JOHN S. KIRBY and VICKY L. KIRBY, husband and wife, Plaintiffs-Respondents,
v.
MARK SCOTTON and DAWN SCOTTON, husband and wife, Defendants-Appellants.

         2018 Opinion No. 12

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Lynn G. Norton, District Judge.

         Order denying motion to set aside default and judgment, affirmed.

          Perry Law, P.C.; Trevor L. Hart, Boise, for appellants. Trevor L. Hart argued.

          Cosho Humphrey, LLP; David M. Penny, Boise, for respondents. David M. Penny argued.

          LORELLO, Judge

         Mark Scotton and Dawn Scotton appeal from the district court's order denying their motion to set aside an order of default and from the final default judgment. For the reasons set forth below, we affirm.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         On July 8, 2016, John S. Kirby and Vicky L. Kirby filed a complaint against the Scottons asserting claims for trespass, nuisance, negligence, and a request for injunctive relief. The Kirbys asserted that the Scottons' irrigation practices resulted in water flooding onto the Kirbys' property, causing damage. Counsel for the parties communicated on July 13, 2016, regarding a possible resolution of the case. The complaint was delivered to the Scottons' counsel on July 14, 2016, but counsel never signed the acceptance of service. The Kirbys' counsel served the Scottons directly with the complaint on August 31, 2016, after the Scottons' counsel failed to accept service or file an answer. No answer or notice of appearance was filed within the timelines required by the Idaho Rules of Civil Procedure.

         The Kirbys moved for entry of default on October 24, 2016.[1] The Scottons' counsel contacted the Kirbys' counsel on October 26, 2016, stating that the Scottons' counsel had not filed an answer because he had been waiting to hear from the Kirbys' counsel in regard to whether the case had been resolved. The Kirbys' counsel agreed to withdraw the motion for default and gave the Scottons one week to file an answer. The next day, the Kirbys' counsel emailed the following to the court clerk, advising: "Please withdraw our Motion for Entry of Default against Mr. and Mrs. Scotton. We are in negotiation to secure an answer to our complaint. The answer will be filed next week sometime or if not we will refile our Motion for Entry of Default." On November 4, 2016, the Kirbys' counsel emailed the court clerk and indicated that the Kirbys intended to proceed with the default because no answer had been filed. Counsel's email asked, "Do I need to 'refile' my documents or my [sic] I just request that they be provided to the judge." The court clerk responded that she could "just provide them to the Judge." The Scottons' counsel was not included in the November 4 email exchange.[2] The district court entered default on November 18, 2016.

         The Scottons filed an answer on December 1, 2016, and filed an I.R.C.P. 55(c) motion to set aside the default on December 6, 2016. In their motion to set aside default, the Scottons asserted that the Kirbys took action in the case without notice to the Scottons after they had informed the Kirbys of a potential resolution. The Scottons also argued that their answer asserted several meritorious defenses; their failure to file an answer earlier was not willful, but was due to miscommunication; and that the Kirbys would not suffer any prejudice if the default was set aside. Although the Scottons' counsel filed an affidavit in support of the motion to set aside, to which he attached a letter he sent to the Kirbys' counsel setting forth the Scottons' position regarding the dispute, the motion was not supported by an affidavit from the Scottons. In response to the motion, the Kirbys argued that the Scottons' counsel had told the Kirbys' counsel that the Scottons' counsel was uncertain as to whether he was representing the Scottons and, because of this, the Kirbys served the Scottons directly. The Kirbys also asserted that the Scottons filed their answer seventy-two days late and that, had the Kirbys not filed the lawsuit, the Scottons would not have done anything to prevent further damage to the Kirbys' property.

         The district court held a damages hearing on December 15, 2016, and argument on the motion to set aside the default was heard on January 19, 2017. The district court denied the Scottons' motion to set aside default, finding that the Scottons failed to show good cause for not accepting service through their counsel and not filing a notice of appearance, a motion to extend time to answer, or an answer between July 19 and November 4, 2016. The district court also concluded that the Scottons failed to plead, with particularity, a meritorious ...


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